Card Range To Study

22 Cards in this Set

Capacity: Witness must have the capacity to observe, record, recollect, and narrate.

Oath: The witness must affirm her willingness to tell the truth and understand what it means to tell the truth.

Personal Knowledge: Witness must have actually observed the matter about which he is testifying.

Lay Opinion Testimony - Rule 701

Statements of opinion or inferences are permitted when (1) rationally based on perception and (2) helpful to the trier of fact in understand testimony given or determining a fact in issue.

Leading Questions - Rule 611(c)

Leading questions should not be used on direct examination unless (1) necessary to develop the testimony – e.g., the witness is young, (2) for preliminary matters, (3) when the memory seems exhausted, or (4) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

Scope of Cross-Examination - Rule 611(b)

Cross –examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility.

Present Recollection Refreshed - Rule 612

Anything can be used to refresh the witness’s memory.

Court may inspect and redact portions the proponent indicates are unrelated.

Right to Inspect - 612(a)

Scope of Right to Inspect: The right to inspection applies to documents used to refresh witness’s memories during testimony and before trial during preparation.

Exclusion of Witnesses – Rule 615

A trial court may sua sponte sequester a witness or if a party requests sequesteration of a witness, then the Court must exclude witnesses so they cannot hear the testimony of another witness’s testimony.

Purpose of the rule is to avoid one witness’s testimony from tainting another witness.

Designated Representative - 615(b): Designated representative exemption refers to parties such as the government or a corporation.

Essential Person - 615(c): Essential person exception requires a request for an exemption in advance with reasons for the person is essential.
1. Agent who handled the particular transactions
2. Expert witness for counsel

Bias: The relationship between a party and a witness which might lead the witness to slant his testimony in favor of or against a party.

Always Evaluate Under Rule 403: This impeachment method is subject to Rule 403, but the objecting party must be able to show unfair prejudice to the party not the witness. Always do a 403 analysis. Evidence will be excluded if there is a sufficient risk of unfair prejudice.

Establishing Bias: Extrinsic Evidence

The proponent may use extrinsic evidence to prove bias, which includes corruption, coercion, and self-interest.

Nonspecific Impeachment: Sensory or Mental Capacity

1. Extrinsic Evidence Admissible

2. Subject to Rule 403

Contradiction

A witness may be asked about a contradicting fact on cross examination, but may not attempt to set up the witness for contradiction for the purpose of admitting extrinsic evidence that is otherwise inadmissible.

Admissibility of Extrinsic Evidence

Counterproof: Extrinsic evidence offered to prove that the witness’s testimony is not true.

Additional Relevance Necessary: Counterproof must be relevant independently of its impeaching effect.

Non-Collateral

The extrinsic evidence is relevant to an independent substantive or impeaching point.

Collateral Point

Contradictory evidence relevant only to a collateral point is usually inadmissible.

Evidence is relevant only because it contradicts, but casts doubt on the entire testimony.

Prior Inconsistent Statement – Rule 613

1. Statement must be inconsistent with the witness’s testimony

2. On request, the proponent must show the statement or disclose its contents to the opposing counsel

3. Proponent must have a good faith basis for asking the question

4. Witness must be given a chance to explain or deny

Standard for Inconsistency

Could a jury reasonably find that a witness who believed the truth of the facts testified to would have been unlikely to make prior statement of this tenor?

1. Direct Contradiction; or
2. Subsequent Additions or Omissions

Restricted Use of Extrinsic Evidence

Extrinsic evidence is permitted only if the matter is not collateral - i.e. non trivial matter.

Prior Inconsistent Statements to Impeach Own Witness – Rule 607

A calling party may impeach its own witness’s credibility.

Bad Faith Rule: Lawyer may not impeach own witness with a prior inconsistent statement in bad faith in order to expose the jury to inadmissible evidence.
1. Attorney is usually aware that the witness will not testify helpfully.
2. Purpose is not to get the witness’s testimony.

Good Faith Standard: Circumstances show that the calling attorney did not anticipate own witness would not testify helpfully.

Rehabilitation of Witness: Requirements

1. Witness’s credibility must have been attacked.

2. Rehabilitation only at the point of attack.

Rehabilitation of Witness: Attacking Evidence

1. Opinion or reputation that witness is untruthful are forms of attack.

2. Evidence of misconduct, conviction, or corruption are also forms of attack.

3. Evidence of bias or interest are not attacks.

4. Direct contradiction evidence depends on circumstances.

Rehabilitation of Witness: Types of Evidence

Evidence of character for truthfulness and veracity.

Prior consistent statements are admissible to rehabilitate witness or rebut charge of contradiction.